Consent Discussions in California

One of the things I love about my family is that they take an active interest in my career and hobbies. So when I flew into L.A. to see my folks, my dad handed me a big box of newspaper clippings, related to literature, folklore, dance, sex education, and so on.

An affirmative consent standard in the determination of whether consent was given by a complainant.

Prohibition on an accused perpetrator using self-intoxication or recklessness as a defense. It would also not be a defense if the accused failed to take reasonable steps to ascertain consent.

An explicit provision that an individual is unable to give consent for sexual activity if the individual is asleep or unconscious; incapacitated due to drugs and/or alcohol; or unable to communicate due to a mental and/or physical condition.

A preponderance of the evidence standard in the determination of disciplinary action.

And so on. So far, so good, right?

Well… no. One of the opinion pieces, published in the Sunday June 1 L.A. Times, thinks that an affirmative consent standard is not only unlikely, but also unsexy. He writes: “The legislation’s affirmative consent requirement doesn’t apply just to sex. It covers all physical contact for which consent is required by a college’s sexual assault policy, like intimate touching. In real life, such contact is welcomed after it begins, not affirmatively consented to in advance.”

I hope y’all see that this is really problematic. This statement exemplifies the sex-negativity prevalent in our culture, specifically the idea that having to obtain consent by explicitly asking for it is un-sexy. It’s not hard to see where this idea comes from; in practically every Hollywood flick the characters experience mind-numbing chemistry, kiss, and wind up in bed together, with nary a word spoken.

Is it really all that terrible to have to ask for someone’s consent before touching or kissing them? Would it really be so soberingly un-sexy to say something like, “Hey, I’d like to kiss you. How do you feel about that?” Apparently, yes, there is no greater boner-killer than verbally obtaining consent.

What’s even more troubling is that this opinion was expressed by Hans Bader, an attorney and former U.S. Department of Education Lawyer. In other words, the people making our laws don’t think obtaining verbal, explicit consent is sexy or feasible.

Another person, Sandra Perez, wrote in to say: “Legislation in Sacramento essentially would mandate that a would-be Romeo obtain an express opt-in before proceeding to bed with his sweetheart, as if any such target of Romeo’s desires doesn’t have ample opportunity to communicate her unequivocal wish to opt out.” This is another WTF comment, since it both assumes that men are always the initiators of sexual contact (which is a harmful construct of performing idealized masculinity) and that there are never coercive situations wherein women – or men – don’t feel safe saying no.

I’m saddened and disturbs that both of the quotes in this opinion piece reinforce negative, harmful, and untrue ideas about consent. Whether or not you’re in California and hence potentially affected by this law, I recommend reading up on consent and figuring out how to make it a more prominent part of your conversations and your practices. So here are some links: